Introduction

Several factors conspire to make a legal history of Japan a unique challenge. First, little was known by anyone except the Japanese of their society until the Chinese starting pushing onto their shores. The Japanese had no native written language: Japanese is a derivative of Chinese script based on pictographs (see, China: A Legal History and Crime and Punishment in Ancient China).

It is difficult to find evidence of any legal system from bones, pottery and bronze bells, left by the first hunter gatherers of the island of Japan, the Ainu.

But even the Ainu had law, though not written, but nonetheless customs followed implicitly by the people and handed down from generation to generation. Even as we go through the epochs of Japanese “law”, until the reforms begun in 1868, Japan never did have a clear, concise body of law on contracts, for example, or torts.

Koreans, Jimmu and Yamatai

In about 500 BC, a group of Koreans arrived on the island and took over a plain, an area to be known as Yamato. They were flush with Chinese culture including codes of law. The immigrants managed to push back the Ainu and eventually flourished.

According to religious Japanese records, every emperor of Japan has descended from the leader of the Korean immigrants, Jimmu (660 BC).

The Japanese still refer to 660 BC as the founding date of their nation, which they celebrate every February 11th.

Further, Japan was not a cohesive nation as we know it today. Instead it was a set of strong independent states vying for power and territory. Every so often, one of the states would consolidate power from shore to shore but it would not last.

In about 300, records show the existence of a large state encompassing almost all of Japan: known as Yamatai or Yamato. This is known not by native Japanese sources but by the records of Chinese travelers. The location of the center of the Yamatai government is a matter of dispute, Kyushu and Yamato being the contenders.

Yamatai was ruled by Queen Himiko (183-248), who doubled as shaman, the religious leader. According to the Cambridge History of Japan:

“Himiko(or Pimiko) ... was served by 1,000 women and one man and guarded by 100 men but was accessible only to her brother.”

Thus, she may have been the monarch, but her brother governed.

And he governed a small state with a clear class hierarchy where men of high rank had four or five wives.

All of this, not from native Japanese records, from the chronicles of Chinese travellers. The Japanese had, as yet, no written language.

Himiko was replaced by Emperor Sujin. The double role of the emperor or empress, as the case may be, symbolized the primary characteristic of Asian law at the time: religion and law were inseparable.

Noda writes:

“Through prayer (Himiko) knew the will of the ancestor gods ands pronounced oracles which were law....

“Law is called nori and noru, the verbal form of nori, means to ‘declare’. Thus, the law was the will of the gods declared by the person interceding between the gods and the people....”

Quite like contemporary Muslim law and the law prevalent in China, the law, as it was, purported to regulate not just prohibited conduct as between individuals but the private lives and choices of individuals themselves. The law was as much a moral code.

History calls this form of Japanese law Shintoism, way of the Gods.

Oda writes of this period:

“Punishment of offenders was justified on the ground that the commission of crime had displeased the gods and an act of purification was needed. Trial was by ordeal which usually required the witness to retrieve a stone from boiling water.”

One Yamato king, Ingyo (circa 425), decided to verify the claim of local chiefs by lining them up and demanding that they place their hands into a vat of boiling water and if their hands were not burned, they could retain their alleged title. That process took care of the line-up of pretenders to title. The ordeal was called kukatchi and when two were brave enough to contest their titles in this way, he who was least burnt was given the formal title of the contested land.

Slavery was rampant in medieval Japan. Up to ten percent of the inhabitants were slaves and they were regulated and divided into subclasses and were subject to harsher punishments in the event of crime. The state was one of the largest slave owners: their slaves were called kanko.

One of the more popular punishments for serious crimes was slavery for life, becoming the property of the state.

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Duhaime Lawisms

Asked by others what to do, what the law would want a person to do, American lawyers will go off and find what a few old men scattered
about the country 30, 50, a 100 years ago, sitting on intermediate appellate courts in Pennsylvania or in a town in the mountains
of Kentucky, said they thought the law was at the time they spoke. They come back, put it all together, and say, "That is the law.
That you ought to obey." They expect to be paid for producing such an answer and do not expect their inquirer to exclaim "Ridiculous!"
and turn on his heel and stalk away.
Joseph Vining, The Authoritative and the Authoritarian, 1986

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.